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Welcome to galisonlaw.com law blog. Our mission: to scour the universe for compelling stories in several related areas: DWI law, criminal law and and traffic law. Current changes in these laws offer broad interpretations, encompassing such recent news as the Leandra’s Law, and Jack Shea's law which eases restrictions on collecting blood in intoxication cases. We’ll write about industry news and legal trends, with a sprinkle of good old-fashioned gossip.

We’ll link to the best coverage of law and lawyers from around the Web, report some news of our own and look to you for contributions. We heartily invite your comments, tips and insights.

Along with my ruminations, this blog will include bits and bites from articles in the the New York Law Journal and Legal Newswires. Email me at david@galisonlaw.com.

Thursday, March 24, 2011

TOP FIVE THINGS EVERY MOTORIST SHOULD KNOW

IF STOPPED BY A POLICE OFFICER

FOR A TRAFFIC TICKET OR A DWI

There are very few experiences in life that are more dreaded or feared then being pulled over by a police officer. With the ever increasing costs of auto insurance and the state fines and surcharges associated with moving violations a motorist’s anxiety level can go through the roof. If you have consumed any alcohol prior to the stop multiply this anxiety by ten.

1.The Stop. A motorist is under no obligation to answer any questions for a police officer. If you are pulled over by an officer the only information that you are required to provide is your license, registration and insurance.

(Listed below is suggested conduct for a motorist to follow if stopped.)

•Place your car in park and turn on your interior lights.

•Have your license, registration and insurance in hand before the officer arrives at your window.

•Keep your seatbelt on during the stop so that you do not get ticketed for failure to wear it. Often times an officer will not believe that you took off the seatbelt to reach your documentation, so keep it on.

•Be polite, but do not volunteer information. If you are asked, “Do you know why I stopped you?” answer no. The police write down your answers to be used against you.

•Keep your hands where the officer can see them at all times.

•Never argue or raise your voice to the officer.

•If you receive a ticket accept it graciously and consult with an attorney.

2.Roadside Tests. A motorist is under no obligation to perform any roadside field sobriety tests. If you are asked to exit the vehicle, there is an extremely high likelihood that the officer has already determined to arrest you for DWI. On the side of the road there is no fair judge of your performance and there is no video of how you perform. The only judge of your performance is a police officer who often times is going to make overtime based upon your arrest.

Performing field sobriety tests under less then ideal conditions can affect the validity of the tests. Consider the following before you agree to do any DWI field sobriety testing.

•Are you tired?

•Are you Nervous?

•Are you uncoordinated?

•Are you overweight by more then fifty pounds?

•Do you have any medical conditions that can affect your balance?

•Are you wearing appropriate footwear?

•Is the location of the testing appropriate for the testing?

oIs it well lit?

oIs it level?

oAre there distractions close by like passing cars, or pedestrians?

You have the right to refuse standardized field sobriety tests. If any of the above conditions are present it can have a major impact on the results of the testing which will then be used against you in court. Keep in mind that at this point in the stop you are likely to be arrested. The question is whether performing standard filed sobriety test in the field (on the road) will help exonerate you, often times they will not no matter how well you really perform. People fail sobriety tests when they are sober. Sobriety tests are subjective tests unless they are recorded with audio and video so that they can be judged fairly by others. With all the factors that can affect DWI sobriety tests on the roadside it is often better to refuse all testing.

3.Breath Testing. Every motorist who is arrested and charged with a DWI in New York, is required to submit to a chemical test of their blood, breath or urine to determine their alleged blood alcohol concentration or BAC. Though a person has the right to refuse this testing (and often times should), a knowing refusal will result in the revocation of their driver’s license for a one year period if proper refusal warnings are given by the officer. The question then becomes do you give a breath sample.

In considering the decision on whether or not to give a breath sample you should be aware of the following:

•The Nassau County Crime Lab was closed in early 2011 because of departures from the minimum standards of care necessary to run a police crime lab. The crime lab was responsible for mixing the simulator solutions that the breath testing equipment in Nassau County utilizes.

•Kathleen Rice, the Nassau County District Attorney pointed out at a morning news conference that she asked county executive Mangano to shut the lab down "because supervisory activity and potentially intentional personnel conduct relate not only to the drug chemistry testing performed at the lab but to the entirety of the lab."

•In Nassau County it is police policy that no video will be made of your performance tests (Standardized Field Sobriety Tests) if you take a breath test. In other words if you want to have a video made of your testing so that your performance can be judged by a neutral person (a jury) rather then a police officer you must refuse a breath test. Essentially, if you want a video made to show your innocence you must give up your driver’s license!! That is ridiculous and unfair.

•Breath testing equipment is not perfect and it can make mistakes.

•Consider the factors listed below as a partial list of items that can affect the reliability of the breath testing machines:

oIf a person has a fever it can throw of the machine.

oIf a person burps, regurgitates or has acid reflux it can throw off the machine.

oIf a person has dentures it can throw of the machine.

oIf a person blows for too long it can throw off the machine.

oIf the mouth piece is not changed it can throw off the machine.

oIf the chamber is not properly purged it can throw off the machine.

oIf the person has certain chemical compounds in their system in can throw off the machine. (Painters, Carpenters, Chemists, etc…)

oIf the persons blood to breath partition ratio deviates from the median it can throw off the machine, not everyone is in the middle of a bell curve.

oThere police do not wait 10 - 15 minutes and then perform a second test to confirm the results of the first test. Unfortunately if you believe the machine has made a mistake and request a second test you will be denied.

Juries often are kept in the dark about just how many things can go wrong with a breath testing machine despite the best efforts of the defense attorney. Deciding whether to take the breath test or not is a case specific decision, and often times the best decision is not to take the test, especially if you do not trust the police.

4.Standardized Field Sobriety Testing (SFST). In Nassau County, Suffolk County and Queens County the decision to take SFST back at the station is a hard one. Often times you are being pressured to take tests that are not properly explained under conditions that would make anyone uncomfortable. As mentioned above in Nassau County DWI testing is not video taped unless you are willing to give up your license for a year! However, if you want the best evidence of your testing preserved you must refuse the breath test or no audio/video will be made.

SFST testing is not an exact science and the results reported can vary on the same subject depending on who gives the test. All of the issues that can impact the roadside SFST testing listed above are present but add to that the pressure and nervousness of having been placed in handcuffs and told you are under arrest for the first time in your life. Under those conditions only you can decide if taking the tests would be fair and accurate. I believe that for the average person it is better to refuse the test as they are typically administered in an unfair and coercive manner.

5.Call Your Attorney. Attorneys are available 24 hours a day 7 days a week to help you. Make sure that you have your attorneys name and phone number in your cell phone and in your wallet or purse. Do not speak or give a statement to the police without consulting with your attorney first. Be definitive. Say “I want to talk to my attorney now.” And do not volunteer any information just wait with your mouth closed.

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